The Court of Appeals of Virginia released three published opinions this week.
Brian Kuang-Ming Welsh v. Commonwealth of Virginia involves a topic that is somewhat controversial -- firearm and toolmark testimony. Welsh was convicted of two counts of first degree murder and associated firearms charges. These charges arose from Welsh's addiction to drugs and his association with Rishi Manwani, a drug dealer. Welsh's life spun out of control when he was fired from his job due to declining performance undoubtedly associated with his drug use.
On January 31, 2018, police conducted a welfare check on Manwani's mother, in whose home he lived. Both Manwani and his mother where found shot to death. Manwani appeared to have been robbed, as his empty wallet was found near his body.
Welsh was interviewed multiple times, and along with other investigative results, police formed the theory that Welsh had killed Manwani and his mother on the morning of January 29, 2018 and then fabricated an elaborate ruse to provide himself with an alibi including texting Manwani later that day and on the next day calling another of Manwani's customers to express concern for his safety. Police also learned that Welsh had sought his brother's anf father's assistance to secret of dispose of a handgun. Police later recovered a Buck Mark .22 caliber pistol from Welsh's father.
It was the forensic examination of this pistol and the marks on discarded shell casings at the scene of the murders that resulted in the expert testimony about toolmarks. The Commonwealth "was able to determine with 'a very high level of certainty' that Welsh’s Buck Mark .22 caliber pistol was the firearm that was used to kill the Manwanis."
Welsh moved to exclude the toolmark testimony, contending that the forensic expert's methods were not scientifically valid. After hearing testimony from the expert about her methodology, the circuit court denied the motion to exclude her testimony.
After a delay caused by the COVID-19 pandemic, Welsh was tried in a trial lasting 20 days. At trial the expert not only testified that the toolmarks on the shell casings indicated that they had been fired from the Buck Mark pistol, she further testified that the specific type of ammunition that matched the shall casing, qualities of which were recovered from both Welsh's home and his father's home, was uncommon and typically used with a silencer. She further testified that other toolmarks on the gun suggested that the barrel had been removed and replaced.
When Welsh sought to call his own expert, the circuit court accepted a proffer of the evidence, but concluded that the witness was not going to offer an opinion on whether the toolmarks showed that the shell casings were not fired by the Buck Mark. Rather the court found that the witness instead would criticize the methodology used by the Commonwealth's witness, which the court said was an improper attempt to impugn the credibility of a witness.
Welsh appealed the trial court's admission of the Commonwealth's expert's testimony and the exclusion of his expert's testimony. He also raise a speedy trial argument related to the COVID-19 emergency, which he had not raised until five months after the trial just before sentencing. The Court of Appeal, Judge Beales joined by Judges O'Brien and Athey, make short work of that issue because the speedy trial motion was raised too late. There was also a challenge to the sufficiency of the evidence that predictably falls to the standard of review.
The meat of the opinion is devoted to the toolmark expert testimony. The Court notes that this type of evidence has been admissible since at least 1941. While the since of toolmark identification is frequently criticized, its admissibility is a matter committed the the circuit court's discretion and the court is permitted to rely on the expert's testimony concerning the reliability of the methodology used in deciding whether the expert has both the training and experience to render an opinion. In short, once the expert is found to be acceptable, the issue is not the admissibility of the evidence, but the witness's credibility. While this explains why the Court approved of the denial of the motion to exclude the Commonwealth's expert's testimony, it seems to open a big, gaping hole in the argument that the circuit court was also correct to exclude the defendant's expert because he was going to attack the Commonwealth's witness's credibility.
And, indeed, the Court does recognize the problem. The Court, however, does not find that the exclusion of the defense expert's testimony was harmless error. Indeed, it notes that Rule of Evidence 2:702(b) supports the circuit court's ruling that one expert cannot "opine" on the credibility of another witness. However, there is least a plausible argument that the expert was was going to attack the credibility -- or perhaps reliability is a better word -- of her methodology, a perfectly acceptable rebuttal tactic.
The Court thus takes a route, that I personally cringe at when I read the words "assuming without deciding that the trial court erred," of harmless error. My view is that if the Court is going to declare an error harmless, it should have the decency to call it an error.
As to the Court's harmless error analysis, I concede that it is not entirely unconvincing, as there certainly was a lot of, admittedly circumstantial, evidence pointing to Welsh's guilt. I am sure that Welsh and his counsel will be less sanguine about that analysis being "not entirely unconvincing," but without a dissent, I wouldn't expect to see an en banc rehearing granted. I am less certain whether the Supreme Court won't want to weigh in, however,
Let me close out this case by posing a question about something the Commonwealth apparently didn't do. You may have wondered what relevant there was to the testimony that the ammunition was typically used for guns with a silencer (the correct term, I believe is "suppressor," but po-tay-toe, po-tah-toe). Well, it seems that on a phone call to his father while he was in jail (you know, the kind that come with the warning that they will be recorded by the jail -- why are so many criminals so clueless?), Welsh asked Dad to “get rid of the soda can.” Now I happen to know that "soda can" is slang for a silencer -- and I would have thought the Commonwealth would have had someone testify to that fact.
But apparently, they did not. The Court makes no mention of such testimony, and in its harmless error analysis says that perhaps the jury reasonable concluded that the father was being asked to remove and dismantle to silencer barrel from the pistol. I suppose it's even possible that one or more the jurors, like me, knows that "soda can" is slang for a silencer.
The slang, by the way, is not as you would suspect the result of the urban myth that putting a soda can stuffed with rags around the barrel of a gun or a plastic soda bottle (either filled with soda or rags) on the end of the gun will function as a silencer. It's actually to opposite -- they myth originated from the fact that "soda can" was slang for a real low-end type silencer which resembled a soda can in shape (sort of, see image below), leading some clueless criminals to think that a real soda can or bottle would do the trick -- it won't.
Also, in case Hollywood has you convinced that a pistol or long gun with a silencer will make a soft "pfsst" when fired, that too is a myth. On average, suppressors reduce the noise of a gunshot by only 20 – 35 decibels (dB), roughly the same sound reduction as earplugs warn at the shooting range. Even the most effective suppressors on the market, on the smallest and quietest caliber (.22 LR) reduce the peak sound level of a gunshot to around 110 – 120 decibels, which is roughly the same level of sound as a thunderclap, a chain saw at 3 feet, or an auto horn at 4 feet. It's louder than a lawn mower outside your window, city traffic from the sidewalk, or a vacuum cleaner being run in the next room with the connecting door open.
So why use a silencer? Well, two reasons. First, as noted, it's not really a "silencer," is a suppressor. The thing being suppressed is not the sound, but the muzzle flash. There are time were it is more important to conceal your location than the eliminate the sound of the gunshot when firing your gun, and the muzzle flash is a dead giveaway as to your position (even in daylight). The limited suppression of the sound was just a byproduct. Snipers will sometimes use a suppressor, but as they tend to reduce range and accuracy significantly, long-distance snipers usually do not.
In Virginia Alcoholic Beverage Control Authority v. Zero Links Markets, Inc. t/a VinoShipper.com, we learn about the fascinating topic of shipping wine into the Commonwealth. Well, the topic may not be fascinating, but much of the background provided by the Court -- a thumbnail sketch of the history of booze in Virginia -- certainly is. Judge Raphael, who is joined by Judge White and Sr. Judge Petty, begins this opinion with the aforementioned history of booze, or rather the legality of selling the fermented, brewed and distilled varieties of adult beverages. in the Old Dominion. It makes the opinion worth reading even if you stop at the top of page 7 when the Court leaves of its historical musings and addresses the legal issues in the case over the renaming 16 pages.
It wasn't too long ago that you couldn't ship wine directly to consumers in Virginia from out-of-state. However, a few years back when the winery business was booming (and craft brewing was still a niche market), the wine selling lobby convinced the General Assembly to allow wine sales from out-of-state. It was a big tussle between local wineries in Virginia, big wine wholesalers, and the out-of-state wineries and "wine clubs" and unless you were an oenophile (yep, it's a real word -- "a lover or connoisseur of wine"), you probably did not notice. Fast forward to 2020 and the ABC is overseeing 1400 out-of-state licensees who are shipping the nectar of Bacchus to the good citizens of the Commonwealth.
One of these was Zero Links Markets, which wisely chose to operate under the trade name of Vinoshipper.com. The problem was that while Zero Links had a license to ship wine into Virginia, it wasn't actually shipping any wine. Rather, Zero Links was, for lack of a better word, a Potemkin village, a fancy façade, with nothing of substance behind it. Zero Links took orders through its website, but then separately ordering the wine from "various wineries across the country" which selected the wines, packaged them, labeled the package, and tendered the shipment to the common carrier for delivery to the customer in Virginia.
The ABC concluded that Zero Links' license did not permit this. The license permitted the holder to ship wine from its place of business (in this case, an office park in Windsor, California, which is sort of adjacent to the wine regions of the Sunshine State -- though according to Wikipedia its economy, through formerly based on growing wine grapes, is now on tourism and serving as a regional commerce center), it was not doing so. To the extent that Zero Links was shipping wine at all, by virtue of its placing orders with the actually wineries that then contracted with the shippers, it was doing so from multiple, unlicensed locations.
Now, I will pause here to note that, if it is not apparent already, this case is about to veer deep into the Great Dismal Swamp that is administrative law. Frequent readers of this blawg know that I enjoy administrative law only slightly less than getting a poke in the eye with a sharp stob. So let's make this quick and as painless as possible.
Appealing the ABC's decision to the Circuit Court of the City of Richmond, which has the misfortune to be the court designated by statute to hear all such administrative agency appeals, Zero Links obtained a reversal -- though how is frankly beyond me, because, as the Court of Appeals points out, the law is pretty clear that “a separate license [is required] . . . for each separate place of business” from which wine is shipped -- shipped, not "sold." The only exception was if the licensee used a fulfillment warehouse that was not physically in the same location as the "place of business," but was the sole point from which shipments originated. While Zero Marketing was arguably "selling" wince from Windsor,, CA (and I would not be willing to go even that far), it was definitely not shipping it from there.
Now that we've gotten that unpleasant task out of the way, let me offer an apology to the real Great Dismal Swamp -- which actually is not dismal at all. The fens and forest land surrounding Lake Drummond in the Southeastern corner of Virginia is a beautiful, verdant, and vibrant ecosystem. Lake Drummond is, itself, something of a mystery, as there are no natural stream course that would have supported the creation of such a large body of water, and theories as to its origin include the possibility that a small meteorite struck the wetlands, creating an impact crater that flooded, resulting in the surrounding marsh being reduced in size and allowing the forested parts of the region to flourish. This theory, while not accepted by all, is support by a native legend that the lake was created by a "fire bird" that crashed into the swamp.
Navy Federal Credit Union v. Delores B. Lentz is the shortest of the this weeks published opinions, clocking in at just under 8 pages. It comes from Judge White, joined by Judge Raphael and Sr. Judge Petty -- the same panel that decided Zero Marketing, so perhaps they were taking a breather after producing that 23-pager. The issue in the appeal is whether the circuit court erred in not grant a demurrer and the subsequent motion for summary judgment. Now it's not unusual for a circuit court to find itself bench-slapped by the appellate court for short-circuiting a case by demurrer or summary judgment, but its a very rare case to see one told that it erred deciding to let a case go to trial . That, however, is what happened in Lentz. Well, not quite, because this is an interlocutory, so the case was on its way to trial, but stopped off at the Court of Appeals first.
Ms. Lentz, 74 years old at the time, fell victim to a scam that was presented to her as coming from a Facebook friend. The friend's account, of course, had been hacked, and the message encouraging Lentz to enroll in a government grant program, which for some reason required her to make payments to the "government" first before she would then get a significantly larger return, was the baldest flimflammery. Alas, neither Lentz, nor any of the employees at the credit union where she kept her money, recognized the scheme for what it was. Lentz was soon $134,500 poorer.
Now, I did say that none of the credit union employees questioned the legitimacy of the transactions, but it is not clear that Lintz discussed the reasons she was requesting to make two large wire transfers with any employee of the bank. Nor does the opinion indicate what proportion of Lentz's deposits with the credit union were being transferred or whether she had made large, legitimate transfer in the past.
Lentz sought to recover the lost funds from the bank under a theory that Code § 63.2-1606(L)(i) imposes a duty on a financial institution to protect its depositors from financial exploitation. Indeed, the statute is entitled "Protection of aged or incapacitated adults; mandated and voluntary reporting," and imposes duties on various entities including financial institutions. She also relied on the Bank Secrecy Act, a federal statute.
But do either of these statutes create a duty to the depositor and, thus, a private cause of action when the financial institution fails to discover that there is chicanery afoot. The circuit court thought so, and denied the demurrer and motion for summary judgment.
The Court of Appeals does not read the statues as creating the duty to the depositor. The BSA is a federal statute, and well-established precedent says that Congress must expressly create a private cause of action when legislating on regulatory matters. The BSA imposes duties on financial institutions, and while these may enure to the benefit of the depositors, the law does not provide for private enforcement of the act -- which is for the government regulators alone to enforce.
State law can, however, create a duty the breach of which may give rise to a cause of action. However, in this case, the duty was not to protect the individual depositor from any and all exploitation, but to have in place procedures that would attempt to identify potential exploitation. The statute relied upon by Lentz doesn't actually require the financial institution to stop any suspect transactions, but instead empowers them to stay the execution of a transfer order for the purpose of investigating. In this regard, the statute is more of a shield to prevent the depositor from claiming that the delay caused them harm. Because the statute permitted, but did not compel, the the credit union to act, its failure to do so is not the breach of any duty to Lentz (though it is also not a ringing endorsement of the perspicacity of its employees and the training it provides them).
The Court goes on to point out that there are provisions of the UCC which govern situations like this and they preempt any theory that Code § 63.2-1606 was intended to create a private cause of action. The UCC displaces any common law duty -- including a duty implied by another statute (though none was found here). My guess is that this last section was more a nod to the General Assembly, which might otherwise have been accused of failing to protect Lentz and others who get scammed. The Court is, in essence, saying that "look, the legislature can take steps to encourage private enterprises to be on the lookout for elder abuse and financial exploitation, but it had to balance the interest of protecting the vulnerable against imposing a duty to act affirmatively on those enterprises -- and possibly interfering with the smooth operation of the banking system."
That analysis may seem harsh -- but it is the balance that the elected and judicial branches have to wrestle with every day. It is frustrating that the bad guys get away with preying on the elderly and others who are ensnared. It's especially frustrating to know that many of the scammers are either protected by or actively employed by their governments, flouting international law. Until we find away to bring them to justice, however, the burden for falling for a scam will fall, no matter how harshly and heavily, on the victim.